Why Arab League plan to freeze Sudan president indictment will fail

By Wasil Ali*

July 20, 2008 — News reports have indicated that the Arab League Secretary General Amr Moussa will travel to Khartoum and offer the government a plan to have Sudanese courts prosecute Darfur war crimes suspects in return for freezing indictment of president Omar Hassan Al-Bashir.

The plan supposedly would set up special courts that would look into Darfur crimes and therefore this would halt the work of the International Criminal Court (ICC). According to the Rome Statue the ICC will not look into cases that have been reviewed by the local judiciary as long as they were genuine. In fact the Rome Statue encourages national courts to take the leading role on the matter.

But this concept of complementarity in ICC statue has been widely misunderstood by many people including the so called legal experts who filled Arab talk shows over the past week. The impression they gave to the audience is that if Sudanese courts were to look into any cases of Darfur war crimes then ICC will automatically lose jurisdiction.

First of all in order to invoke a challenge to the admissibility of a case based on complementarity, Sudan must challenge it before the ICC judges. By doing so, Sudan will have in effect accepted the jurisdiction of the world court. Thus if the ICC rejected the challenge to its jurisdiction submitted by Khartoum, the Sudanese government cannot go back to claim that it does not recognize the ICC. This will only make matters worse for Khartoum.

Second, how can Sudan try war criminals when its laws do not contain any provisions for war crimes or crimes against humanity? This in itself is a poison pill and will make it hard for ICC judges to buy any national proceedings inside Sudan. Also the immunity bestowed by Sudanese laws on military commanders and government officials is another obstacle.

Even if we assumed that the war crimes were incorporated in Sudanese laws then the government must try the same suspects named by ICC for the same crimes allegedly committed by them. Anything short of that will cause the ICC judges to immediately dismiss a challenge to its jurisdiction. I also find it hard to imagine that Khartoum will be willing to prosecute its own officials for crimes of this magnitude. It only means that the Sudanese government is incriminating itself.

Moreover, if a special court is indeed created in an African country, who will be willing to pay its expenses? I highly doubt that it will be the Arab countries given their reluctance to pay for African troops in Darfur all these years. The regional court proposal was submitted by Nigeria prior to the referral by the UN Security Council (UNSC) of the Darfur case to the ICC and even Sudan rejected it. Many countries thought it would be a waste of money to create a special court while a permanent court already exists.

On the other side the victims and the witnesses must have a say on the venue of the trials. They will most likely reject anything but the ICC. Obviously their safety cannot be guaranteed in Sudan or any other African countries for which they have little trust in.

The Arab League should have simply asked Al-Bashir to hand over Haroun and Kushayb to the ICC. This is the only viable solution if I was in Amr Moussa’s place. Sudan had a whole year to try the two suspects but instead ignored the ICC and Al-Bashir stressed that he will not bring Haroun before court or remove him. “We don’t know how far up the ICC prosecutor will go” Al-Bashir was quoted as saying in response to a question on trying Haroun.

The Sudanese government has been claiming that Kushayb was in custody for allegations of violations he committed in Darfur. Then the Justice ministry banned publication on Darfur war crimes proceedings. As it turned out later Kushayb was released and some even doubted he was in detention. Even before he was sacked the former Sudanese justice minister insisted that the militia leader was not freed.

The reality is that the Sudanese government does not recognize crimes committed in Darfur. Chances are that Khartoum will never conduct genuine national proceedings. For Sudan, justice is a matter of politics and fooling the world so they can evade prosecutions. This is all that it is. It should be of no surprise that a prominent and a very well known legal expert close to the government harshly criticized the handling of Darfur war crimes by Khartoum. He told a number of people privately that he presented a set of recommendations upon the request of the government and they threw it into the garbage can.

It must also be noted that the Arab League plan appears to be premature since the ICC judges have not issued a decision yet. Should they reject the ICC’s prosecutor’s application Sudan will most definitely throw the war crimes issue behind its back.

I think it is time that Sudanese people consider another candidate to replace Al-Bashir. If it his destiny to face the ICC so be it. Sudan cannot be paying the price for the horrendous policies of the National Congress Party (NCP) throughout its 19 long years in power. It is under the NCP’s watch that the atrocities in Darfur against Sudanese citizens occured. If Al-Bashir had any respect for human lives he would have resigned by now. However power is far more of a concern to the NCP than the dignity and well being of its people.

* The author is Sudan Tribune journalist. He can be reached at [email protected]